J v Attorney-General
[2017] NZHC 701
•11 April 2017
NOTE: PURSUANT TO S 130 OF THE INTELLECTUAL DISABILITY (COMPULSORY CARE AND REHABILITATION) ACT 2003, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON- PUBLISHING-JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2017-485-000025 [2017] NZHC 701
UNDER The Statutes of Westminster the First
1275, The Bill of Rights 1688, The
Judicature Amendment Act 1982, TheNew Zealand Bill of Rights Act 1990, The Criminal Procedure (Mentally Impaired Persons) Act 2003, The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 and the Common Law
IN THE MATTER
Of an application for Judicial Review, Declarations of Inconsistency, and Public Law Compensation
BETWEEN
J, COMPULSORY CARE RECIPIENT, TE ROOPU TAURIMA O MANUKAU TRUST BY HIS WELFARE GUARDIAN, T
Applicant
AND
THE ATTORNEY-GENERAL First Defendant
THE DISTRICT COURT AT MANUKAU Second Defendant
THE FAMILY COURT AT MANUKAU Third Defendant
THE CARE CO-ORDINATOR Fourth Defendant
THE CARE MANAGER Fifth Defendant
J v THE ATTORNEY-GENERAL [2017] NZHC 701 [11 April 2017]
Hearing: 27-28 February 2017 Counsel:
A J Ellis and G K Edgeler for Applicant
A M Powell and M J McKillop for First Defendant
M G Coleman and I S Auld for Fourth DefendantJudgment:
11 April 2017
JUDGMENT OF COLLINS J
Introduction
[1] This judgment addresses five pre-trial questions of law concerning the validity of a number of orders made in relation to J pursuant to the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act).
[2] I explain in [41] the five questions that are addressed in this judgment. For present purposes it is sufficient to say that the questions focus upon aspects of the lawfulness of J’s detention since February 2006 under the IDCCR Act.
[3] The questions have been designed to address issues that were able to be heard on an urgent basis. Other issues will be addressed when the substantive proceedings are heard and determined. The substantive proceedings are an application for judicial review, an appeal from a judgment of Judge A P Goodwin delivered in the Manukau Family Court on 27 February 20171 and an application for a review
brought under ss 102 and 104 of the IDCCR Act.2
1 [H] v [J] [2017] NZFC 1079.
2 102 Judge may call for report on care recipient or summon care recipient
(1) A High Court Judge may make an order directing a district inspector or 1 or more other persons—
(a) to visit and examine a care recipient who is detained in a facility; and
(b) to inquire into and report on any matter relating to that care recipient that the Judge specifies.
(2) Whether an order under subsection (1) has been made or not, a High Court Judge may make an order directing a care manager to bring a care recipient for whom the care manager is responsible before the Judge in open court or in Chambers, for examination at a time specified in the order.
(3) An order under subsection (1) or (2) may be made on the Judge's own initiative or on the application of any person.
[4] As this judgment is confined to questions of law I have strived to avoid engaging in contentious factual matters which will be explored in the substantive proceedings. It has, however, been necessary for me to refer to some factual matters in order to provide context to the legal questions answered in this judgment. Where I have referred to facts I have done so on the basis that those facts may be subject to challenge in the substantive proceedings.
Background
[5] J, who is now 33 years old, was diagnosed with autistic spectrum disorder at an early age. In addition, J has been assessed as having a low IQ. An assessment of J’s IQ, using a Wechsler Adult Intelligence Test (WAI-III) was conducted in 2005 when J was 21 years old and revealed he had a Full Scale Intelligence Quota of between 58 and 68, functioning below 99.5% of similar aged peers. A report from Dr Jensen, a registered clinical psychologist, dated 13 November 2016 states J’s IQ is unlikely to have changed since he was assessed in 2005. Dr Webb, a registered psychologist, also recently assessed J’s IQ using a Wechsler Adult Intelligence Test (WAI-IV) and considered J to have intellectual disabilities.
[6] Reports from health professionals who have assessed J record that he has violent fantasies, engages in impulsive violent behaviour and does not have an understanding that his violent behaviour could cause harm. The earliest recorded example of J’s violent behaviour was in 2000 when he attempted to injure another student by cutting her neck. J’s recorded violent fantasies include a belief he was James Bond and that he was on “missions”. These “missions” included J breaking into a school building in 2004 to cut a teacher’s head off. Health professionals have described their concerns about the risk J poses through pictures he has drawn and descriptions given of the removal of people’s feet or cutting their necks open. Other examples of the risk it is believed J poses and his lack of appreciation of
consequences can be found in reports, which describe how he tried to grab the driver
104 Judge may release care recipient no longer subject to criminal justice system
After the examination, under section 102(2), of a care recipient no longer subject to the
criminal justice system, the Judge may order that the care recipient cease to be a care recipient if the Judge is satisfied–
(a) that the care recipient is detained illegally as a care recipient; or
(b) that the care recipient no longer needs to be cared for as a care recipient.
of a vehicle in which he was being transported that was travelling at speed because he wanted to experience being in an accident.
[7] In 2004, J was charged with two minor offences, namely being unlawfully in an enclosed yard3 and wilful damage.4 He was, at the same time, charged with the more serious offence of being in possession of an offensive weapon. That charge however appears to have been discontinued at an early stage.
[8] On 8 February 2006, Judge R L Kerr made an order in the Manukau District Court that J was not fit to stand trial.5 This order was made under the CPMIP Act. Concurrently, Judge Kerr ordered J be cared for as a care recipient under the IDCCR Act.6 The latter order meant that he was deemed to be subject to a compulsory care order under the IDCCR Act.7
[9] It is a notable feature of the IDCCR Act that persons can only become care recipients under that Act via the criminal justice system. There is no “civil” entry into the IDCCR Act regime as there is with the Mental Health (Compulsory Assessment and Treatment) Act 1992.
[10] The policy objectives of the IDCCR Act can be discerned from ss 3 and 11 of that Act. Those sections provide:
3 Purposes
The purposes of this Act are—
(a) to provide courts with appropriate compulsory care and rehabilitation options for persons who have an intellectual disability and who are charged with, or convicted of, an offence; and
(b) to recognise and safeguard the special rights of individuals subject to this Act; and
(c) to provide for the appropriate use of different levels of care for individuals who, while no longer subject to the criminal justice system, remain subject to this Act.
3 Summary Offences Act 1981, s 29(1B). The maximum penalty is three months’ imprisonment.
4 Section 11. The maximum penalty is three months’ imprisonment.
5 Police v [J] DC Manukau CRN-409-203-4925-26, 8 February 2006.
6 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 25(1)(b).
7 Sections 24(1)(b) and 26(2).
11 Principles governing exercise of powers under this Act
Every court or person who exercises, or proposes to exercise, a power under this Act in respect of a care recipient must be guided by the principle that the care recipient should be treated so as to protect—
(a) the health and safety of the care recipient and of others; and
(b) the rights of the care recipient.
[11] Before Judge Kerr could make orders placing J under the jurisdiction of the IDCCR Act, he had to be satisfied that J had an intellectual disability as defined in s 7 of the IDCCR Act.8
[12] A consequence of J being made the subject of a compulsory care order under s 25(1)(b) of the CPMIP Act was that he automatically ceased to be subject to the criminal justice system.9
[13] The IDCCR Act provides for two types of care orders, namely supervised
care and secure care orders. Those who are subject to supervised care “may be directed to stay in a facility or in another place”.10 Secure care means care given
8 7 Meaning of intellectual disability
(1) A person has an intellectual disability if the person has a permanent impairment that–
(a) results in significantly sub-average general intelligence; and
(b) results in significant deficits in adaptive functioning, as measured by tests generally used by clinicians, in at least 2 of the skills listed in subsection (4); and
(c) became apparent during the developmental period of the person.
(2) Wherever practicable, a person's general intelligence must be assessed by applying standard psychometric tests generally used by clinicians.
(3) For the purposes of subsection (1)(a), an assessment of a person’s general intelligence is indicative of significantly sub-average general intelligence if it results in an intelligence quotient that is expressed–
(a) as 70 or less; and
(b) with a confidence level of not less than 95%. (4) The skills referred to in subsection (1)(b) are–
(a) communication: (b) self-care:
(c) home living: (d) social skills:
(e) use of community services: (f) self-direction:
(g) health and safety:
(h) reading, writing, and arithmetic: (i) leisure and work.
(5) For the purposes of subsection (1)(c), the developmental period of a person generally finishes when the person turns 18 years.
(6) This section is subject to section 8.
9 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 6(3)(b).
10 Section 5.
under the IDCCR Act to someone “who is required to stay in a secure facility”.11
The order made by Judge Kerr required J to be detained in a secure facility. This was done by placing J in the Pohutukawa Unit at the Mason Clinic in Auckland.
[14] The term of a compulsory care order lasts for the term specified in the order and may not be longer than three years.12 The term of the order made by Judge Kerr in respect of J was for two years.
[15] Unfortunately, the formal orders issued by the Manukau District Court following Judge Kerr’s decision recorded the orders were made on 8 February 2005. I will return to consider the error concerning the date of the original order in [54] to [56] because it constitutes one of the grounds upon which Dr Ellis, senior counsel for J’s welfare guardian, has challenged the validity of J’s continued detention.
[16] The term of a compulsory care order may be extended under s 85 of the
IDCCR Act which provides:
85 Extension of compulsory care order
(1) The Family Court may, on the application of the co-ordinator, extend the term of a care recipient's compulsory care order.
(2) If the Court extends a compulsory care order for a care recipient no longer subject to the criminal justice system, the Court must consider and determine whether the care recipient must receive supervised care or secure care.
(3) The Court may order that a care recipient no longer subject to the criminal justice system receive secure care only if it considers that supervised care would pose a serious danger to the health or safety of the care recipient or of others.
[17] In RIDCA Central (Regional Intellectual Disability Care Agency) v VM,13 the Court of Appeal explained the principles that govern extensions of a compulsory care order. For present purposes those principles can be distilled to the following six
points:
11 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 5.
12 Section 46.
13 RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2011] NZCA 659, [2012]
1 NZLR 641.
(1)The interests in protecting the community must outweigh the liberty interests of the care recipient before a compulsory care order can be extended.
(2)It is not sufficient that a care recipient would benefit from care and treatment in order to justify extending a compulsory care order.
(3)The weight to be placed on the care recipient’s liberty interests is not static. The longer a care recipient has been the subject of a compulsory care order the justification for an extension is likely to increase because the interests of protecting the community will need to be greater to outweigh the loss of liberty to the care recipient.
(4)The nature of the original offending may provide an indication of the level of risk posed by the care recipient.
(5)In a finely balanced case, the fact an extension of a compulsory care order would make the period of the compulsory care disproportionate to the offending may also be a relevant factor.
These and other relevant principles will need to be considered and applied in the substantive proceeding.
[18] Also relevant is s 87 of the IDCCR Act which provides:
87Court may defer expiry of order if application for extension pending
(1) If a care recipient's order is due to expire at any time when an application, under section 85, to extend the term of that order is pending before the Family Court, the Court may defer the expiry of the order by specifying a date as the last day of a period that, in the opinion of the Court, is sufficient for the application to be heard and determined.
(2) The co-ordinator may apply without notice for an order, under subsection (1), to defer the expiry of a compulsory care order.
(3) As soon as the Court makes an order under subsection (1), the co- ordinator must serve a copy of the order on every person who is entitled to be served with a copy of the application under section 85.
(4) Every person served, or entitled to be served, under subsection (3) with a copy of an order under subsection (1) may apply to the Court for the cancellation or variation of the order.
[19] The review provisions of the IDCCR Act are also relevant. Section 72 provides that six months after the approval of a care and rehabilitation plan of a care recipient,14 the co-ordinator must present a report to the Family Court on the continued appropriateness of the contents of the care and rehabilitation plan. The report must be sent to persons prescribed under s 73 of the Act.15 On receipt of the report, the Family Court must review the contents of the care and rehabilitation plan and any compulsory care order.16
[20] Since the time of Judge Kerr’s order on 8 February 2006, J has continued to be detained and cared for under the provisions of the IDCCR Act. This is because, since 8 February 2006, there have been eight extensions of the term of the compulsory care order made under s 85 of the IDCCR Act and eight deferrals of the expiration of compulsory care orders made under s 87 of that Act. I will briefly summarise each of the deferral and extension orders, and also explain other orders relevant to the issues addressed in this judgment.
[21] On 27 November 2006, Judge D F Clarkson reviewed J’s case. In a minute
issued that day she recorded that the order made by Judge Kerr had been incorrectly
dated “as being 8 February 2005 and it should be rectified and re-issued to show
14 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 24(2).
15 This includes the following persons: (a) the care recipient:
(b) the care recipient’s care manager:
(c) if the care recipient is a child or young person, each parent or guardian of the child or young person:
(d) any welfare guardian of the care recipient: (e) any lawyer of the care recipient:
(f) the care recipient’s principal caregiver:
(g) the specialist assessor who gave the certificate referred to in section 72(3)(a): (h) the responsible district inspector:
(i) in the case of a special care recipient, the Director-General of Health.
16 Section 74.
8 February 2006”.17 It transpired that Judge Clarkson’s direction was not carried out until January 2017 after the care co-ordinator notified the Manukau District Court that no rectification order had been issued pursuant to Judge Clarkson’s minute.
[22] On 4 February 2008, Judge J G Adams ordered the deferral of the expiration of J’s compulsory care order. He directed that Mr Gruar be reappointed as counsel to represent J’s interests. Mr Gruar has attended a number of hearings involving J since Judge Kerr’s original order.
[23] On 30 April 2008, the compulsory care order was “extended for six months” by Judge Adams. In making this order the Judge recorded his expectation that a plan would be developed and discussed with interested parties to ensure the best arrangements were put in place “for the future management of [J’s] risks and his life
needs”.18
[24] On 29 October 2008, the day before the extension order was to expire, Judge I M Malosi ordered that the expiration of the compulsory care order be “deferred until further order of the Court”.19 Thus, at that stage, the effect of the Family Court order was that J’s compulsory care order was to remain in place until further order of the Family Court.
[25] J’s care was next reviewed by a Family Court Judge on 5 December 2008. Judge Adams recorded that he “appreciate[d] on the one hand the protective and supportive reasons for extension and, on the other hand, the disproportion that extension (particularly long extension) carries …”.20 The Judge directed J’s case be set down for hearing in January 2009.
[26] On 28 January 2009, Judge M L Rogers considered an application from the Regional Intellectual Disability Care Agency (RIDCA) to extend the compulsory care order by 12 months. That application was opposed by J’s mother, who wanted
the Court to make orders allowing J to live with her. Judge Rogers extended J’s
17 Regional Intellectual Disability Care Agency v [J] FC Manukau FAM-2005-092-1596,
27 November 2006 at [2].
18 [W] v [J] FC Manukau FAM-2006-092-1669, 30 April 2008.
19 [W] v [J] FC Manukau FAM-2006-092-1669, 29 October 2008.
20 [W] v [J] FC Maunkau FAM-2006-092-1669, 5 December 2008.
compulsory care order by six months because there was, at that stage, “no alternative option to secure care” for J.21 In granting this extension Judge Rogers said the extension “will … allow the Court to monitor very closely [J’s] circumstances. It simply seems untenable … that [J] should be detained in a catch 22-type situation any longer than absolutely necessary”.22 The catch 22 situation the Judge referred to was the absence of any option for J to receive community-based supervised care, and that the absence of an alternative care arrangement meant J was “effectively languishing in care”.23
[27] On 29 June 2009 Judge Adams conducted a review. He expressed concern as to J’s “plight of ongoing detention” and set a date to hear any extension application.24
[28] On 27 July 2009, Judge G F Hikaka extended J’s compulsory care order by a further 12 months. In granting that extension Judge Hikaka said that the evidence satisfied him that J required care in a secure environment and that he was “not being left languishing”.25
[29] On 24 March 2010, a review of J’s case was conducted by a Family Court Judge who ordered that J’s “secure compulsory care order [be] extended for six months”.26
[30] Notwithstanding J’s compulsory care order was extended for six months on
24 March 2010, on 19 July 2010 Judge F J Eivers deferred the expiration of J’s
compulsory care order by three months.
[31] On 6 October 2010, Judge Hikaka extended J’s compulsory care order for two further years. The Judge explained in his decision “that there would be serious
danger to the health or safety of other if [J] was released from compulsory care”.27
21 RIDCA v [J] FC Manukau FAM-2006-092-1669, 28 January 2009 at [14].
22 At [15].
23 RIDCA v [J] FC Manukau FAM-2006-092-1669, 28 January 2009 at [12]
24 RIDCA v [J] FC Manukau FAM-2006-092-1669, 29 June 2009.
25 RIDCA v [J] FC Manukau FAM-2006-092-1669, 27 July 2009 at [5].
26 [W] v [J] FC Manukau FAM-2006-092-1669, 24 March 2010 at [3].
27 [W] v [J] FC Manukau FAM-2006-092-1699, 6 October 2010 at [3].
Judge Hikaka directed the Court receive updates on an action plan for J’s “transfer to a community based living situation”.28
[32] On 5 December 2011, Judge M L Rogers reviewed J’s care and ordered that
J’s “status … be varied from secure to supervised”.29
[33] The next significant step occurred on 3 October 2012, when
Judge M J Southwick deferred the expiration of J’s compulsory care order until
3 December 2012. On 27 November 2012, the expiration of the compulsory care order was deferred until 17 December 2012 by Judge P Whitehead.
[34] When J’s case came before the Family Court at Manukau on 17 December
2012, Judge A Skellern ordered the extension of the compulsory care order for a period of two years. She directed J was to continue to receive supervised care and recorded that his case was to be reviewed every six months.30
[35] On 17 December 2014, Judge Southwick deferred the expiration of J’s compulsory care order “for a period of four months or until earlier order of the Court”.31
[36] On 13 April 2015, Judge Skellern extended J’s compulsory care order for 18 months. In making this order Judge Skellern recorded that J’s mother wanted any extension of J’s compulsory care order to be limited to six months and that a plan be put in place for J to live with his mother. The RIDCA argued that the expert evidence before the Court demonstrated J required a compulsory care order and that J could not safely move back into the community. The evidence before Judge Skellern included reports of two incidents in which J had been found to be in possession of a knife and a “butter knife”. Judge Skellern said that “after
considering the issues of proportionality and outcome of the … application against
28 [W] v [J] FC Manukau FAM-2006-092-1699, 6 October 2010, at [7(1)].
29 [H] v [J] FC Manukau FAM-2006-092-1699, 6 October 2010 at [2].
30 [H] v [J] [2012] NZFC 10004.
31 [H] v [J] FC Manukau FAM-2006-092-1699, 17 December 2014.
the original index offending, and balancing the competing issues of community
protection and individual liberty” an extension of 18 months was “justified”.32
[37] On 3 October 2016, Judge Skellern deferred the expiration of J’s compulsory care order until 13 December 2016. On 25 November 2016, the expiration of the compulsory care order was deferred by Judge A J Twaddle. The deferral was until
28 February 2017. 33
[38] As noted in [21], on 21 December 2016, the care co-ordinator alerted the Court to the fact that Judge Clarkson’s direction to re-issue a corrected version of Judge Kerr’s original order had never been carried out. On 10 January 2017, a “corrected” order was sealed. That “corrected” order, however, also contained an error as it purported to have been made pursuant to s 25(1)(a) of the CPMIP Act
instead of under s 25(1)(b) of the CPMIP Act.34
[39] When the errors in the first corrected order were appreciated, a second corrected order was issued on 11 January 2017. That second corrected order remedied the error concerning the reference to the incorrect section of the CPMIP Act. However, it stated that J had been found to be “mentally disordered” as opposed to “mentally impaired” which is the terminology used in s 14 of the CPMIP Act. I will consider the significance of these errors in [60] to [64].
[40] On 9 January 2017, Dr Ellis filed an application for habeas corpus. The application was filed in the name of J’s welfare guardian, who is his mother. That application was heard by Clark J on 12 January 2017 and dismissed by her on
18 January 2017.35 Clark J recorded in her judgment that the multiple arguments
raised in the application were not amenable to a habeas corpus hearing and that an application for judicial review was more appropriate.
[41] On 24 January 2017, Dr Ellis filed a statement of claim for judicial review. The statement of claim pleads 15 causes of action and comprises 307 paragraphs.
32 [H] v [J] [2015] NZFC 3031 at [11].
33 [H] v [J] [2016] NZFC 9983.
34 The relevance of this is discussed below at [54]-[56].
35 J v Care Manager [2017] NZHC 15.
Because of the urgency of the application, I convened a case management conference on 8 February 2017. Following that case management conference I prepared four questions that I directed be determined before the balance of the statement of claim was heard. Those questions were based on questions that Ms Coleman, senior counsel for the care co-ordinator and case manager, suggested should be addressed before trial. It was counsel’s view that these questions could be answered without resolving any contested factual issues and may assist in resolving legal questions prior to the substantive hearing. On 15 February 2017, following submissions from counsel, the fifth pre-trial question was added. Those questions were set down for hearing on 27 and 28 February 2017 and asked:
(1)Did the compulsory care order made in respect of J expire without being [lawfully] renewed?
(2)Did any purported extension or deferral of the expiration of the compulsory care order lapse without being [lawfully] renewed?
(3)If the compulsory care order expired and if it was not lawfully renewed, extended or its expiration deferred, is it now capable of being retrospectively reinstated?
(4)If the compulsory care order could have been retrospectively renewed, extended or its expiration deferred, did the Family Court ever do so?
(5)Were the original and amended orders issued under the CPMIP Act lawful?
Logically, the fifth question should be answered first. I accordingly will address that question before turning to the other questions. It is also necessary to amend what are currently the first and second questions by making it clear the issue is whether the compulsory care order was “lawfully” renewed.
[42] The application by the care co-ordinator to extend J’s compulsory care order by a further three years and to vary the care from supervised to secure was heard by Judge A P Goodwin in the Manukau Family Court on 2 and 3 February 2017. At the same hearing Judge Goodwin heard an application filed on behalf of J’s welfare guardian to oppose the extension of the compulsory care order and to cancel the deferral order made on 3 October 2016.
[43] Judge Goodwin delivered his judgment on 27 February 2017.36 In his
decision, Judge Goodwin extended J’s compulsory care order for 18 months from
14 October 2016. Judge Goodwin also acceded to the request from the care co-
ordinator to change J’s status from supervised to secure care.
[44] Judge Goodwin recorded in his judgment that he was “in no doubt [J] continues to pose a high risk of re-offending” and that J “… has a special interest in violence and that given the opportunities … he will impulsively act out that intent”. Judge Goodwin also said that J’s “lack of understanding of the consequences of his actions … further heightens the risk of his offending and the risk of that offending
being violent”.37
[45] When balancing the interests of protecting the community from the risk of J engaging in violent behaviour against J’s right to liberty, Judge Goodwin concluded that “the community protection interest outweighs the liberty interest, and therefore the compulsory care order should be extended”38 and that the seriousness of J’s risk of causing violent harm to his care team and potentially himself meant that J needed to be detained pursuant to a secure order.39
[46] Dr Ellis filed an appeal against Judge Goodwin’s judgment on 21 March
2017. That appeal will be heard contemporaneously with the application for judicial review.
36 [H] v [J] [2017] NZFC 1079.
37 At [84].
38 At [109].
39 At [116].
[47] On 21 March 2017, Dr Ellis filed an application for a review pursuant to ss 102 and 104 of the IDCCR Act. Those sections are outlined in footnote 2 and provide the High Court with jurisdiction to review the care of a care recipient and order that the person cease to be a care recipient if they are detained illegally or if they no longer need to be cared for as a care recipient.
[48] I direct that the application for a review under ss 102 and 104 of the IDCCR Act be considered in tandem with the application for judicial review and the appeal from Judge Goodwin’s decision of 27 February 2017. While there will be some points of difference between the three types of hearing being pursued in this Court by J’s welfare guardian, there is also a very high degree of overlap between each proceeding and it is appropriate that all issues be dealt with in the one hearing scheduled to begin on 3 July 2017.
First question: Were the original and amended orders issued under the CPMIP Act lawful?
[49] There are six bases upon which it is said the order made by Judge Kerr was unlawful:
(1) The original order was dated 8 February 2005.
(2) The replacement order purported to be issued under s 25(1)(a) of the
CPMIP Act.
(3) The first and second replacement orders erroneously said J had been
found to have a “mental disorder”.
(4) None of the orders identified the Judge who issued the order.
(5)The orders were wrongly directed to the directors of the RIDCA and/or Regional Intellectual Disability Services and Support (RIDSAS).
(6)The first and second replacement orders did not record the conditions precedent for a compulsory care order under s 25(3) of the CPMIP Act.
[50] Under s 117 of the District Court Act 2016 “a technical defect or an
irregularity does not invalidate a judgment, an order, or a proceeding”.
[51] The provisions of s 117 of the District Court Act are complemented by r 204
of the Family Court Rules 2002, commonly known as the “slip rule”, which states:
204 Clerical mistakes and slips
(1) This rule applies to a judgment—
(a) that contains a clerical mistake or an error arising from an accidental slip or omission, whether or not the mistake, error, slip, or omission was made by an officer of the Court; or
(b) that is drawn up in a way that does not express what was actually decided and intended.
(2) The judgment may be corrected by the Court or, if the judgment was made by a Registrar, by the Registrar.
(3) The correction may be made by the Court or the Registrar, as the case requires, on his or her or its own initiative or on an interlocutory application for the purpose.
An identical “slip rule” can be found in r 11.10 of the District Court Rules .
[52] In my assessment, each of the defects in the original and amended orders identified by Dr Ellis are technical defects or irregularities in the orders and as such, the orders are not invalidated by reason of those defects.
[53] Because I have concluded that the errors identified by Dr Ellis do not invalidate any of the orders in issue, it is not necessary for me to consider applying the remedial provisions of s 19 of the Judicial Review Procedure Act 2016.
Date of the original order
[54] There are two reasons why I conclude that the date in the original order issued by the Manukau District Court following Judge Kerr’s judgment was a technical defect or irregularity and that the order issued by the Manukau District Court should have been dated 8 February 2006 and not 8 February 2005. Those reasons are:
(1) First, the order was issued pursuant to Judge Kerr’s oral judgment,
which was dated 8 February 2006.
(2) Second, when J’s case was reviewed by Judge Clarkson on
27 November 2006, she pointed out that the order issued following Judge Kerr’s judgment was incorrectly dated. Judge Clarkson directed the error be corrected and a new order be issued to show the date of 8 February 2006.
[55] The error made when the order was issued by the Manukau District Court following Judge Kerr’s judgment was plainly an administrative error on the part of the Deputy Registrar, who signed the order. The order never took effect from
8 February 2005. The error in the original order was plainly a technical error or defect which did not invalidate the original order.
[56] As I have previously noted, I do not need to direct what if any steps should now be taken to remedy the error in the original order because this proceeding is limited to answering questions about the lawfulness of the various orders and steps taken in J’s case. This proceeding is not concerned with what remedy may be granted following the application for judicial review/appeal/review.
Reference to s 25(1)(a) of the CPMIP Act in the replacement order
[57] On 10 January 2017, the District Court at Manukau issued the first replacement order correcting the date of the original order to 8 February 2006. The first replacement order was issued on a form that cited s 25(1)(a) of the CPMIP Act instead of s 25(1)(b) of that Act. The court official issuing the replacement order
relied upon the wrong form. This error was discovered the following day and a second replacement order was issued on 11 January 2017 using the correct form.
[58] Section 25(1)(a) of the CPMIP Act relates to ordering a defendant to be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Section 25(1)(b) of the CPMIP Act, the provision that is relevant to J, relates to ordering a defendant to be cared for as a care recipient under the IDCCR Act.
[59] While there are obviously significant differences between orders made under s 25(1)(a) and those made under s 25(1)(b) of the CPMIP Act, in the present case, the error made by court staff when re-issuing the first replacement order made by Judge Kerr was clearly a technical error or defect which did not invalidate the original order. There has never been any suggestion that J should have been treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act. At all times relevant to this proceeding he has been cared for as a care recipient under the IDCCR Act.
Reference to “mental disorder”
[60] Both the first and second replacement orders issued on 10 and 11 January
2017 refer to J having been found to be “mentally disordered”. That also was an error on the part of the court staff responsible for issuing the first and second replacement orders as J was never found to be mentally disordered under the Mental Health (Compulsory Assessment and Treatment) Act. Judge Kerr’s decision makes it very plain that J was found to be “mentally impaired” under s 14 of the CPMIP Act and correspondingly unfit to stand trial under the CPMIP Act.
[61] The errors made by court staff on 10 and 11 January 2017 were technical errors or defects which did not invalidate the original order made by Judge Kerr.
None of the orders identify the Judge who issued the order
[62] There is nothing in either the CPMIP Act or the IDCCR Act that specifies the form of an order made under s 25(1)(b) of the CPMIP Act.40 There is therefore no statutory requirement that orders made under s 25(1)(b) of the CPMIP Act identify the Judge who made the order.
[63] In the present case, the original order issued on 8 February 2006 was accompanied by Judge Kerr’s judgment. Those who were directly affected by the order made by Judge Kerr on 8 February 2006 were clearly made aware of the Judge’s identity and the reasons for his decision.
[64] I can see no basis upon which it could be thought that the order made under s 25(1)(b) of the CPMIP Act was unlawful because Judge Kerr’s name did not appear in the sealed order issued under s 25(1)(b) of the CPMIP Act.
The orders were directed to the Directors of RIDCA and/or RIDSAS
[65] The RIDCA (now NIDCA – The National Intellectual Disability Care Agency) was a specialist service formed by the Ministry of Health to support the administration of the IDCCR Act. The RIDSAS was responsible for managing, amongst other facilities, the Pohutukawa Unit at the Mason Clinic where J was placed following Judge Kerr’s order.
[66] The argument advanced by Dr Ellis under this heading was that the order made by Judge Kerr should have been directed to the care co-ordinator and/or care manager as it is the care co-ordinator or care manager who designates the facility where a care recipient must live when they are the subject of a secure order.41 The care recipient must follow the lawful directions of the care co-ordinator and care
manager.42
40 The only specification is that in making the order the court must under CPMIP, s 26(2)—
(a) direct whether the defendant is to be detained in a secure facility; and
(b) specify the term of the order in accordance with s 46 of [the IDCCR] Act.
41 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 63.
42 Section 64.
[67] In the present case, however, the evidence establishes that J was placed in an RIDSAS facility namely, the Pohutakawa Unit at the Mason Clinic in Auckland. That was the only RIDSAS facility that was designated by care co-ordinators as being facilities in which care recipients could receive care. The care co-ordinator was an employee of the RIDCA and the care manager was employed by the RIDSAS.
[68] In my assessment, whilst there may have been a technical error in identifying the entity to whom Judge Kerr’s order was directed, it is not an error that is sufficient to invalidate the order. The order clearly complied with the purposes of the IDCCR Act and no prejudice was caused to J because the order referred to RIDCA and/or RIDSAS rather than the care co-ordinator and care manager.
Section 25(3) of the CPMIP Act
[69] Section 25(3) of the CPMIP Act provides that before the Court makes an order under subs 25(1)(b), the Court must be satisfied on the evidence of one or more health assessors that the defendant has an intellectual disability and has been assessed under Part 3 of the IDCCR Act and is to receive care under a care programme completed under s 26 of that Act.
[70] As I understand Dr Ellis’ submission, he takes issue with the absence of any reference to these three pre-requisites on the order made following Judge Kerr’s decision.
[71] As I have previously explained, there is no statutory requirement setting out the form of an order under s 25(1)(b) of the CPMIP Act. Judge Kerr’s decision clearly explained that J has an intellectual disability, that he had been assessed under the Part 3 of the IDCCR Act and that he was to receive care under a care programme under the IDCCR Act.
[72] I can see no basis for upholding Dr Ellis’ submission that the order made under s 25(1)(b) of the CPMIP Act was invalid because no reference was made in the form of the order to the matters set out in s 25(3) of that Act.
Second question: Did the compulsory care order expire without being lawfully renewed?
[73] The second question focuses upon the lawfulness of various orders that had been made in J’s case extending his compulsory care order pursuant to s 85 of the IDCCR Act.
[74] The issues raised by Dr Ellis in relation to the second question can be summarised in the following way:
(1) The maximum period of a care recipient’s detention under the IDCCR
Act, including any extension under s 85 of that Act, is three years.
(2)Applications for an extension must be determined on the criminal standard of beyond reasonable doubt.
(3)The extension order made by Judge Rogers dated 28 January 2009 was unlawful as it recorded that the applicant was the RIDCA rather than the care co-ordinator.
Maximum term of a compulsory care order
[75] As I have explained in [14], s 46 of the IDCCR Act states that the term of the compulsory care order “lasts for the term specified in the order” and “may not be longer than three years”. I have also explained in [16] however, s 85 of the IDCCR Act provides jurisdiction for the Family Court to extend a compulsory care order.
[76] The plain meaning of the text of ss 46 and 85 of the IDCCR Act is that there is not a three year total limit to the term of a compulsory care order.
[77] The issue raised by Dr Ellis was addressed in the following way by Mallon J
in L v RIDCA Central:43
A compulsory care order must specify its term. That term cannot be longer than 3 years, but there is provision for extension of the order. It seems to be accepted that if an extension is granted then that can be done indefinitely,
43 L v RIDCA Central [2013] NZFLR 497 (HC) at [12].
that is with the effect that the compulsory care could extend for a total period well in excess of three years, provided the Court is satisfied that the extension should be made. In theory at least, that makes the extension power capable of having preventive detention effect.
(Footnotes omitted)
[78] I agree with Mallon J’s interpretation of the meaning of s 85 of the IDCCR Act and the scope for extension of compulsory care orders beyond a total term of three years.
[79] The issue in the substantive hearing will be whether J’s compulsory care order has been properly extended well beyond three years. That issue will require the presiding Judge to apply the principles set out by the Court of Appeal in RIDCA Central (Regional Intellectual Disability Care Agency) v VM, the key parts of which I have summarised in [17]. That issue, however, should not be conflated with the question before me, which asks whether it is possible for a compulsory care order to be lawfully extended so that it lasts longer than a total period of three years. In my assessment, s 85 of the IDCCR Act clearly contemplates that possibility and therefore, compulsory care orders can be lawfully extended so that the duration of the compulsory care order extends beyond three years.
[80] In my view, this approach is consistent with the relevant provisions and the purpose of s 87, which gives the Court power to make a deferral provided an application for extension is pending.
The standard for extending compulsory care orders
[81] Dr Ellis advanced the submission that s 85 extension applications must be determined on the criminal standard of beyond reasonable doubt rather than the civil standard on the balance of probabilities. The standard of proof issue was also raised in the Family Court proceedings before Judge Goodwin.44
[82] There are in my view three reasons why the appropriate standard to apply is the civil standard, namely, the balance of probabilities.
44 [H] v [J] [2017] NZFC 1079 at [19]-[20].
[83] First, the original compulsory care order is made in the District Court pursuant to s 25(1)(b) of the CPMIP Act. The standard of proof for determining unfitness to stand trial under the relevant provisions of that Act is the balance of probabilities.45 It is logical that the civil standard for enacting the original order applies to any extension of that order made in the Family Court.
[84] Second, the IDCCR Act makes it clear that a care recipient subject to a compulsory care order is “no longer subject to the criminal justice system”.46 In the absence of any indication to the contrary in the IDCCR Act, the civil standard is therefore appropriate.
[85] Third, the purposes of the IDCCR Act have protective elements. Those include “to provide courts with appropriate compulsory care and rehabilitation options for persons who have an intellectual disability…” and “to recognise and safeguard the special rights of individuals subject to this Act”.47 These considerations signal a departure from a punitive regime.48
Naming the RIDCA as the applicant
[86] Dr Ellis challenged the lawfulness of the extension order made by Judge Rogers on 28 January 2009 on the basis that the intitulement to the application referred to the RIDCA.
[87] The Manukau Family Court files show the application was in fact brought by the care co-ordinator, Mr Wyatt, and the order for the extension correctly recorded Mr Wyatt was the applicant.
[88] Dr Ellis is right when he refers to an apparent error in the intitulement to the application when it refers to the RIDCA. However, the error identified by Dr Ellis is of no consequence because the application was properly brought by the care co-
ordinator and the order refers to the care co-ordinator. The error identified by
45 Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 9 and 14(3).
46 Intellectual Disability (Compulsory Care and Rehabilitation Act) 2003, ss 3(c) and 6(3).
47 Section 3(a) and (b).
48 See for example Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR
507 (CA) at [35]-[49] where the Court of Appeal found that an extended supervision order had punitive elements and engaged ss 25 and 26 of the New Zealand Bill of Rights Act 1990.
Dr Ellis does not in any way impugn the validity of the order made by Judge Rogers on 28 January 2009.
Third question: Did the purported extension or deferral of the expiration of the compulsory care order lapse without being lawfully renewed?
[89] The issues raised by the third question focus on the deferral orders made under s 87 of the IDCCR Act and can be dealt with under the following headings:
(1)Was the deferral order of Judge Adams on 4 February 2008 out of time?
(2) Was Judge Southwick’s deferral order of 17 December 2014 out of
time?
(3)Was the deferral order of Judge Twaddle on 25 November 2016 lawful?
(4) Can deferral orders be lawfully recorded in a Court minute?
(5)Can the expiration of a compulsory care order be deferred more than once?
(6)What is the effect of the Family Court having twice issued deferral orders for indefinite periods of time?
Was the deferral order of Judge Adams on 4 February 2008 out of time?
[90] The essence of Dr Ellis’ submission in respect of Judge Adams’ deferral order on 4 February 2008 is that J was entitled to credit for pre-trial detention and in taking that credit into account, J’s status as a care recipient would have ceased well before Judge Adams made the deferral order.
[91] When determining how long the term of a compulsory care order shall be following disposition under s 25(1)(b) of the CPMIP Act, the Court is not required to consider pre-trial detention. The regime is not analogous to a prison sentence and it
is relevant that J was no longer subject to the criminal justice system as soon as he became subject to the IDCCR Act.
[92] J was remanded on bail pending resolution of the charges with a curfew condition requiring him to reside at Solway Trust. There was no “pre-trial detention”.
Was Judge Southwick’s order on 17 December 2014 made out of time?
[93] On 27 November 2012, Judge Whitehead deferred the expiration of the J’s compulsory care order until 17 December 2012. The compulsory care order was extended on 17 December 2012 for a term of two years by Judge Skellern. On
17 December 2014, Judge Southwick deferred the expiration of the compulsory care order for a period of four months or until earlier order of the Court.
[94] The argument advanced by Dr Ellis is that the compulsory care order lapsed on 16 December 2014. Dr Ellis explained this aspect of his submission in the following way:49
The 17 December 2012 order was for two years. The first day of that two year detention [was] 17 December 2012. The last [day] on which that order authorised detention as a care recipient [was] day 730 that is 16 December
2014. [J’s] status as a care recipient ceased that day. He was not a care recipient on 17 December 2014… when Judge Southwick purported to defer the expiration of his status as a care recipient.
[95] Dr Ellis’ interpretation is not consistent with s 35(2) of the Interpretation Act
1999 which states:
35 Time
...
(2) A period of time described as beginning from or after a specified day, act, or event does not include that day or the day of the act or event.
...
[96] In the present case, the extension of the order started from the expiration of the old order. The first day of the extended order made on 17 December 2012 was
18 December 2012.
[97] The last day of that order was 17 December 2014. The order would have expired at midnight on 17 December 2014 if no extension or deferral had been made beforehand. The four month deferral of the expiration of the compulsory care order was therefore, made on the last possible day and within time.
Was the deferral order of Judge Twaddle on 25 November 2016 lawful?
[98] Dr Ellis’ submissions on this point seemed challenge the lawfulness of Judge Twaddle’s deferral order on the basis that J did not have legal representation. Dr Ellis’ submissions on this point commenced with the following paragraph:50
How is it that a mentally impaired person can be detained for months on end without a lawyer? But a non-impaired person gets a lawyer. That is the reversal of a special value.
[99] Dr Ellis’ submissions on this point are based upon a misunderstanding about whether or not J was represented before Judge Twaddle. The oral judgment issued by Judge Twaddle on 25 November 2016 clearly records that Mr Gruar appeared for J. There is therefore no basis for the suggestion that J was not represented at that hearing.
Can deferral orders be lawfully recorded in a Court minute?
[100] Dr Ellis submitted that the general requirement of open and transparent justice required the Family Court to record orders deferring the expiration of a compulsory care order in judgments rather than in minutes as occurred in this case. He submitted that by recording deferral orders in minutes the Court was keeping its orders “secret”.
[101] There are two fundamental flaws in this aspect of Dr Ellis’ argument:
(1)First, while the decisions deferring the expiration of the compulsory care order were usually recorded in a Court minute, the actual order of deferral was in the form of a Court order.
(2)Second, as I have noted in [62] s 87 of the IDCCR Act does not prescribe the form of a deferral order. What is important is that once a deferral order is made it must be served on everyone who is entitled to be served with an application to extend a compulsory care order under s 85 of the Act. Those persons include the care recipient, any welfare guardian of the care recipient and any lawyer appointed to represent the interests of the care recipient. In the present case, the deferral orders made under s 87 of the IDCCR Act were served on those who were required to be served under s 85 of the Act. This was not a case of deferral orders being “kept secret” as suggested by Dr Ellis.
[102] Once served with a deferral order, a person with an interest in the proceeding could apply for the deferral order to be cancelled under s 87(4) of the IDCCR Act. This is an important procedural safeguard. It is significant that no application to cancel a deferral order has been pursued until the hearing conducted before Judge Goodwin in February 2017.
Can the expiration of a compulsory care order be deferred more than once?
[103] Dr Ellis submitted that deferral orders under s 87 of the IDCCR Act can only be made once, and not in succession. The essence of Dr Ellis’ submission was that the Court cannot defer the expiration of a compulsory care order to a specified date and then defer it again before the application to extend the compulsory care order is determined. An example of this having occurred in J’s case was Judge Whitehead’s
27 November 2012 deferral order which superseded Judge Southwick’s 3 October
2012 deferral order.
[104] Section 87 of the IDCCR Act authorises the Family Court to defer the expiration of a compulsory care order “at any time” when an application to extend is pending. The plain text of s 87 does not limit the number of times the Family Court
can defer the expiration of a compulsory care order when an application to extend the compulsory care order is pending.
[105] Deferrals of the expiration of a compulsory care order should ideally be for very limited periods of time so as to ensure that applications to extend compulsory care orders are heard expeditiously.
[106] The text of s 87 of the IDCCR Act however, envisages that deferral orders may be made more than once provided an application to extend the compulsory care order is still pending.
What is the effect of the Family Court having twice issued deferral orders for indefinite periods of time?
[107] On 4 February 2008, Judge Adams deferred the expiration of J’s compulsory
care order without specifying the period of the deferral. It transpired that on 30 April
2008, Judge Adams heard and determined the care co-ordinator’s application to extend J’s compulsory care order. Similarly, on 29 October 2008, Judge Malosi deferred the expiration of J’s compulsory care order “until further order of the Court”. On 28 January 2009, Judge Rogers heard and determined the care co- ordinator’s application to extend J’s compulsory care order.
[108] Ms Coleman accepted that the deferral orders made by Judge Adams on
4 February 2008 and Judge Malosi on 29 October 2008, failed to comply with s 87(1) of the IDCCR Act. That subsection requires any deferral order to specify the date by which the application for an extension under s 85 of the Act is to be heard and determined.
[109] Ms Coleman’s acknowledgement was appropriate. The time limits requirements of s 87(1) of the IDCCR Act are designed to ensure the liberty of care recipients is not placed in jeopardy through the indefinite deferral of the expiration of compulsory care orders.
[110] As it transpired, on both occasions that the time limit requirements of s 87(1)
of the IDCCR Act were breached, the care co-ordinator’s application to extend J’s
compulsory care order was heard and determined within three months of the deferral order having been made.
[111] The key issue which I am required to resolve is whether subsequent orders
extending J’s compulsory care orders made first on 30 April 2008 and then on
28 January 2009 were invalid because of the earlier failure by Judge Adams and
Judge Malosi to comply with s 87(1) of the IDCCR Act.
[112] In answering this question I have derived assistance from Sestan v Director of Area Mental Health Services, Waitemata District Health Board,51 in which the Court of Appeal examined the effect of orders made under the Mental Health (Compulsory Assessment and Treatment) Act that were made after authorities failed to comply with the requirement in s 9(2) of that Act that a family member be present when an explanation of the assessment process was given to Mr Sestan. In the context of a
habeas corpus appeal, the Court of Appeal in Sestan rejected Dr Ellis’ argument that an error in the committal process rendered the subsequent procedures invalid. The Court of Appeal said that non-compliance with a statutory requirement does not necessarily invalidate subsequent action. An assessment has to be made of the requirement that has been breached and the degree and seriousness of the non-
compliance.52 In making this assessment it is important to ascertain if any prejudice
was caused by the error and whether the outcome would have been different if the error had not occurred.53
[113] The Court of Appeal in Sestan decided that the failure to comply with the relevant requirements of s 9(2) of the Mental Health (Compulsory Assessment and Treatment) Act did not invalidate the subsequent compulsory treatment order made in relation to Mr Sestan.
[114] My reasons for concluding that in this case the failure by Judge Adams and
Judge Malosi to comply with the time limit requirements of s 87(1) of the IDCCR
51 Sestan v Director of Area Mental Health Services Waitemata District Health Board [2007] 1
NZLR 767 (CA).
52 At [45].
53 Steinborn v Minister of Immigration [2002] 1 NZLR 639 (CA); Dotcom v Attorney-General
[2014] NZSC 199, [2015] 1 NZLR 745 and Sekhon v R [2002] EWCA Crim 2954, [2003] WLR
1655 at [52].
Act did not invalidate the subsequent extension orders can be distilled to the following three points:
(1)First, the time limit requirements of s 87(1) of the IDCCR Act provide an important safeguard to limit unreasonable restraints upon the liberty of recipients of care orders. The purpose of the time limits in s 87(1) is to ensure that applications to extend compulsory care orders are heard and determined expeditiously and not left to linger. In the present case, however, the time between the making of the indefinite deferral orders and the hearing and determination of the extension applications was not significant in the context of orders that had been in place for two years.
(2)Second, although the deferral orders in question were, on their face, indefinite, in fact, the orders became finite when the care co- ordinator’s application to extend the compulsory care orders was heard and determined on 30 April 2008 and 28 January 2009.
(3)Third, no prejudice was caused to J by the errors in the deferral orders made by Judge Adams and Judge Malosi. This is because the deferral orders on 4 February 2008 and 29 October 2008 would inevitably have been made.
Fourth question: If the compulsory care order expired and was not lawfully extended or its expiration deferred, is it capable of now being retrospectively reinstated?
[115] My answers to the first three questions render it unnecessary to answer the fourth question. I will therefore not do so. Suffice for present purposes to record that Ms Coleman accepted there was no jurisdiction for the Family Court to retrospectively reinstate an expired compulsory care order in circumstances where there was no pending application for an extension under s 85 of the IDCCR Act.
Fifth question: If the compulsory care order could have been retrospectively renewed, extended or its expiration deferred, did the Family Court ever do so?
[116] My answers to the first three questions also mean that it is not necessary to engage with this question. I record, however, that Ms Coleman’s acknowledgements in relation to the fourth question extend to the fifth question. Ms Coleman also correctly submitted that where errors occur in the making of a judgment order of the kind that happened in relation to Judge Kerr’s order of 8 February 2006, then the “slip rule” may be able to be engaged to remedy those errors.
Conclusion
[117] The answer to the first question is that the original and amended orders issued under the CPMIP Act were lawful.
[118] The answer to the second question is that the compulsory care orders were lawfully renewed prior to them expiring.
[119] The answer to the third question is that the extensions or deferrals of the expiration of the compulsory care order did not lapse. The compulsory care order was lawfully renewed.
[120] No answers are required in relation to the fourth and fifth questions.
[121] There will be no order for costs in the circumstances of this case.
D B Collins J
Solicitors:
Crown Law Office, Wellington for First and Fourth Defendants